Encod/Kanaba Expert Panel on drug policies

Warsaw, Friday 30 April 2004

From prohibition to legalization: a “good budget cut”

A cost-effectiveness approach to criminal justice and drug treatment systems under prohibition

By Grazia Zuffa (Forum droghe)

Introduction

Two months ago, I happened to take part in a lobbying day at the State House of Massachusetts. It was promoted by Partakers, a faith based, non profit association, which strives for prisoners’ rights. The members of Partakers were there to meet their representatives in the parliament of Massachusetts and urge them to approve an act to Reform Mandatory Minimum Sentences. Partakers is campaigning for the prison system reform, a different issue than the drug policy reform, though some goals may be shared. So, the reform of Mandatory Minimum Sentences is one of the main objectives of the drug reform movement as well, together with the campaign for treatment of drug users instead of incarceration.

As you probably know, most prisoners with these sentences are non violent offenders, mostly drug offenders, who are not eligible for parole. Regardless the non violent nature of their crimes, most offenders serve 2 or 5 year sentences, some serve as many as 15 years. The proposed act would make individuals with mandatory minimum drug sentences eligible for parole after serving 2/3 of their sentence in prison.

I was impressed by the slogan of that campaign: the good budget cut.

In Massachusetts, while the average cost is about $ 46.000 per prisoner each year, the state spends only $ 4000 a year to supervise a person on parole. As Partakers points out, mitigating the cost of over-incarceration will result in freeing up funds for other more reasonable community needs.

I said I was impressed by this argument, because it isn’t so common or popular in Italy. There are many reasons for that, ranging from cultural to political differences, but it’s no point to dwell on this, in the economy of my speech.

Anyway, it’s worth noting that “the good budget cut” is a widespread argument in the American drug policy reform movement: for example, in a recent newsletter of the Drug Policy Alliance, I’ve read about a bill which establishes treatment for drug offenders instead of incarceration, campaigned by the DPA in Maryland. The bill is now waiting for the Governor’s signature. In the newsletter, the Drug Policy Alliance stresses that it will permit 3.000 non violent drug offenders to head from prison to treatment, allowing tax payers to save about $7 million a year.

The “good budget cut” seems to be a good slogan, in presence of the enormous growing of prison population in US, as well as in Europe, largely due to drug prohibition.

In my presentation, I will try first to address the question of the increase in prison population, with the related human and economic costs. In this perspective, I’ll try to question some goals of the drug policy reform movement, that are supposed to be intermediate steps in the way from prohibition to legalization. That’s the case of the campaign for “treatment instead of incarceration”.

Secondly, I’ll turn my attention to the treatment system under prohibition. Most people are led to think that, if there are addicts, and of course there are, they need treatment. And “treatment is just treatment”, and the legal and social contexts make no difference, they think.

On the contrary, my aim is to show that prohibition doesn’t facilitate controlled use of drugs, not to say that it works to discourage the controls most users apply naturally. Further on, prohibition does affect the theoretical perspectives on addiction, and consequently the treatment models, with negative consequences on the efficacy of treatments themselves and their cost-effectiveness. In this perspective, it’s clear the connection between the human and economic costs of the overdeveloped treatment system in the western countries.

I’ll start by examining the rapid growth and expansion of the prison system and its link with drug law enforcement. As you know, the States are the country leader of the war on drugs, with the result of the highest rate of incarceration in the world. 2 million people are behind the bars, but less than 1/3 are violent offenders, while in 1980, about half of those entering state prisons were. That is to say, it is a self fuelling system: the reason for the growth of incarceration doesn’t rely on the growing rates of crime, but on the penal policies. By criminalizing a simple behaviour like drug use, which doesn’t cause any harm to others, the so called “crime without victims”, obviously there will be a large number of persons that are likely to become offenders. Moreover, it’ll be easier for these offenders to relapse in a “crime”, which isn’t really felt like it. With the paradoxical result that drug users are more likely to go back to prison than more serious offenders. This happens in Europe as well, as we’ll see later on.

In the European countries, despite the lower rates of prisoners per inhabitants, the growing trend is similar.

To evaluate the impact of drug laws on the growth of prison system, we can consult the latest Annual report on the state of the drug problem in the European Union, for 2003, issued by the European Monitoring Centre for Drugs and Drug Addiction.

In the European Union as a whole, reports for drug law offences steadily increased over the 15 years from 1985 to 2001, increasing fourfold in the EU as a whole, ranging from less than twofold in Denmark and the Netherlands to more than sixfold in Ireland and Finland. Over the last three years, the number of drug related reports kept increasing in most EU countries.

It is worth noting the link between the reported increase in drug law offences and sentences and the increase in the prison population as a whole, a widespread phenomenon in the European countries since the end of the eighties. Looking at the Italian figures again, in 2002, 39% of all the inmates in the Italian prisons were sentenced for drug law offences.

Also, we can learn that “the majority of reported drug offences are related to drug use or possession for use”, apart from the countries (Spain, Italy at the moment, at least, and the Netherlands) “where drug use is not a criminal offence”, the report says.

In 2001, cannabis remained the drug most often involved in drug law offences, with France as the leading country with 86% cannabis related reports, while in the Netherlands most drug offences were related to “hard drugs”.

As you know, since the beginning of the nineties most European countries have started a process towards a drug policy that is not based on total prohibition. In addition to Spain, Italy, and the Netherlands, Portugal and Luxenbourg decriminalized drug use in 2001, Belgium in 2003, and United Kingdom decriminalized cannabis use in 2003. So, what is the result of this reform trend both on the amount of drug offences and on the incarceration rates as a whole?

As Danilo Ballotta, one of the drug experts from EMCDDA, points out in a recent essay, surprisingly there’s a discrepancy between the decriminalization trend and the increasing police law enforcement: with the result that more than 50% of the reported drug offences in EU as a whole are related to cannabis, with a growing trend notwithstanding the reform of the drug laws.

As regards the incarceration rates as a whole, in most European countries, since the end of the eighties, they have been constantly increasing, despite the lenient trend on drugs.

What is the reason for this discrepancy?

First, the increasing law enforcement on drugs can only be understood within the framework of the broader penal policies and penal trends.

Zero tolerance is the law enforcement approach which came in from the US, and has largely and quickly spread all over Europe. Zero tolerance means a stricter enforcement on small crimes “that must be taken as seriously as big crimes”- that is the idea- or even on the so called “disorderly behaviours”, such as the homeless habit of sleeping in the underground or the aggressive begging. In this perspective, we can realize how being “tough on small crimes” prompts being “tough on drugs” with a stricter law enforcement on small drug crimes also, despite the less severe laws.

Secondly, this discrepancy may induce to verify the two main goals of the drug policy reform movement, aiming at reducing the number of prisoners for drug offences: drug use depenalization or decriminalization, as well as treatment instead of incarceration for drug offenders.

As regards the former, looking at the ten years long Italian experience in drug use depenalization, we can say it has a valuable impact in reducing the stigma and in “normalizing” drug use, although it doesn’t reduce significantly the number of drug offenders. To achieve that, probably further decriminalization of drug related behaviours is needed, like small dealing or offering drugs, together with lower penalties for illicit traffic and dealing. According to the moral approach, penalties for drug offences are usually very high, compared to other crimes, and this accounts for the high rate of drug offenders out of the whole prison population. In this perspective, depenalization of drug use can be reinstated as a reasonable goal, if considered as a first step towards legalization.

As for the latter, treatment instead of incarceration, this appears to be a much more questionable strategy. Both in US and in Europe, just as the prison system has been growing, so has the number of people involved in community based programmes like treatments for drug users. The growing proportion of addicted prisoners has encouraged the development of treatment programmes which act as “alternatives” to custody. Paradoxically, this has fuelled the expansion of the penal system, creating an expanded network of agencies. Those who enter the system become increasingly caught up in a web of control in which they are passed from jail to treatment agencies, from agency to agency and back to jail, quite often. This process has been called “transcarceration”.

As the British criminologist Roger Matthews wrote in 2002, “it involves the movement of individuals between agencies rather than between
agencies and the community”.

In this perspective, treatments are not real therapeutic alternatives, but a new form of penal control. As a matter of fact, people heading from prison to treatment alternatives, are more likely to go back to prison because they have to abstain from using drugs, in addition to abstaining from crimes. This happens even in the countries where drug use is depenalized, like Italy. So, by increasing law enforcement, a greater number of smaller fishes (drug offenders for drug use, mainly) are drawn into the criminal justice system. On the other hand, it becomes more difficult for these offenders to disengage from the web of penal control.

In this perspective, it becomes clear that the involvement of the medical and welfare agencies in the process of “transcarceration” has served to fuel the expansion of the penal system and has stimulated the growth of the prison population. This is even clearer in the countries where people can be sentenced straight to treatment: by establishing treatment programmes as sanctions themselves, these programmes contribute to the growing array of available sanctions, which, in turn, encourages stricter law enforcement.

This is the case for UK, for example, where, in 1999, a bill for “Drug treatment and testing orders” was approved. Of course, treatment “ordered” by law is rather more consistent with the penal than the therapeutic philosophy.

Going back to the strategy of the antiprohibitionist movement. In my opinion, a step by step approach from prohibition to legalization is necessary, nevertheless we should avoid such ambiguous goals as “treatment instead of incarceration”. In addition to the shortcomings I’ve already exposed, I would like to stress that this may become an alibi for avoiding further and more valuable intermediate steps such as decriminalization.

Furthermore, the “treatment instead of incarceration” approach can easily meet the strict prohibitionist policies. This is the case for the present prohibitionist shift in Italy: in the governmental bill, just as the drug offences and penalties have been increased, so have the treatment alternatives. Of course, they are clearly outlined as coerced treatments, to be attended in therapeutic communities only, that are supposed to work very much like prisons.

To sum up, we can suggest that the expansion of alternative treatments won’t probably result in the expected “good budget cut”, because of the “transcarceration” effect I’ve just explained.

This leads straight to the last argument I’d like to address, how prohibition affects the drug treatment system. While the harm of drug prohibition in the field of incarceration is widely accepted, even by moderate prohibitionists who look at the imprisonment of drug users as an unwanted result, this isn’t the case for drug treatments. Usually, both moderate prohibitionists and moderate reformers agree upon developing the treatment system: this is seen as a shift from law enforcement to the cure of addicts. The development of the treatment system is seen as the “humanitarian” approach, in opposition to the strict prohibitionist one, the so called moral approach.

It is worth noting that, in Italy at least, most people who are not willing to change the prohibitionist laws, and even those who want to make them harsher, don’t like to be said “prohibitionists”. For example, while presenting the government’s bill which establishes much higher penalties for all drug offences, the Italian neo fascist vice premier , Giancarlo Fini, said that “his proposal was a middle ground between prohibition and legalization”. This should be seen as a success of the antiprohibitionist movement: we haven’t achieved legalization, yet, nevertheless we’ve led prohibitionists to be ashamed of themselves.

Going back to the humanitarian or health approach, involving the developing of the treatment system, the core of it is the social image of drug users as “sick people”. The slogan is: “They are not bad people, who deserve punishment, they are sick people who need treatment”.

So, once again, though in a different perspective, we find the “treatment instead of incarceration” approach. As the development of the treatment system is presented as an alternative to the growth of incarceration, we can expect that the “tough on drugs” countries would spend less in treatment, and that their drug treatment system would be limited.

But this is not the case, as we can read in a quite interesting book, edited by Harald Klingemann and Geoffrey Hunt, whose title is : “ Drug treatment systems in an international perspective”. Let us examine the case of the very country where the drug war has started, the United States. Despite the lion’s share in the drug war budget is acquired by criminal justice and law enforcement, nevertheless the US treatment system is, by international standards, an enormous structure with more than a quarter of million people employed in more than 5000 facilities.

In Western Europe, the country leader of the drug war is Sweden, that spends more on publicy funded treatments for drug abuse than most countries. The Nordic welfare states in general spend a lot on treatment for alcohol and drug abuse, and, among them, Sweden spends most.

Of course, the Swedish system is a largely coercive one. Even when treatment appears to be voluntary, the drug addict has most likely felt coerced to enter treatment, perhaps by threats of withdrawal of economic benefits, or because of a provision in the law for explicit coercive treatment. Coherently, inpatient, rather than outpatient treatments have been developed, as more suitable to control drug users.

Now, let’s examine the philosophy underlying the treatment system, according the prohibitionist ideology. In my opinion, the present treatment model is still based on the traditional concept of addiction, the still dominant concept. The emphasis is on the drug, which is considered responsible for an entire set of feelings and behaviours. The biological process of addiction is believed to give the organism no choice but to behave in a stereotyped way: the addict will sacrifice all for drug taking.

This is the core of the social image of the “junkie”, compelled to commit crimes by the “evil” drug. Legalizers usually argue that people are urged to commit crimes by prohibition. Nonetheless, we have to admit that this argument is not as effective as it should be because the social image of the “evil” drug is very hard to be defeated.

What is the reason for this over-evaluation of the biological factors? How can people really believe that a chemical can determine human behaviour, leaving out the user’s psychology and, more important, the social context? It should be self evident that addictive behaviour is no different from all other human feeling and action in being subject to social and cognitive influences.

I’m afraid I’m not able to answer these political questions, all I know is that this concept of addiction has prompted a myriad of harmful myths.

The most harmful is the junkie myth. The core of it is the slavery of the addict to drugs, together with the physical, mental, and behavioural deterioration which is supposed to rely on the substance itself.

Of course, the supposed “slavery and helplessness” of drug users perfectly fit with the prohibitionist ideology. First, they emphasize the harm of the psychoactive substance. Secondly, they allow society to condemn the drug, as well as stigmatize drug users as sick people, that are not responsible for their own behaviour. This is the concept underlying the alternative treatments for prisoners, with the shortcomings we’ve already seen.

In this perspective, the disease of addiction is a “lack of will”, a sort of “moral disease”, paradoxically induced by a chemical.

The social belief about the slavery and helplessness of the drug user affects the latter as well: because such beliefs attribute such invincible power to the drug effect, they create a powerful barrier to change.

So, we can realize how treatment systems are usually overdeveloped, rather than underdeveloped, under prohibition: they swim against the tide, we might say, as they have to tackle the disease they are creating.

As William Ryan, the most important community psychologist, writes, it is the art of “Blaming the victim”. After inventing the junkie, it’s easy to put the blame on him, the perfect scapegoat for the harm of prohibition.

As a consequence of the concept of addiction, the disease of addiction must be a very serious one, so the recovery can be achieved only by long term intensive treatments. Relapse is seen almost as unavoidable, for addiction is considered as a chronic disease. Of course, this is a very powerful self fulfilling prophecy, and most problem drug users believe it is pointless to try to give up drugs.

Moreover, according to the prohibitionist ideology, the only acceptable goal of treatment is believed to be abstinence, and controlled use is seen as impossible.

This treatment model is not consistent with the research findings on behaviour change processes.

In short, looking at these findings, we know that:

  controlled use or no problem drug use may be a reasonable goal for compulsive drug users, as in natural changes people happen to step down to controlled use, as well as they happen to shift to abstinence

  natural resolutions (that is resolutions without treatment) happen more often than the treatment assisted ones

In this perspective, the flaws of the “disease”treatment model are evident.

First, by encouraging individuals to set higher, and in certain circumstances unreasonable goals of treatment such as abstinence, they may promote relapse. Secondly, by labelling any episode of drug use as “relapse”, they undermine the user’s self efficacy. Last, but non least, by labelling any pattern of drug use as “addiction”, they retard the development and operation of natural social controls, aiming at reducing the risks of drug use.

Some may argue that this treatment model is changing, as the harm reduction model is developing. I agree with it. But this should urge the antiprohibitionist movement to update its political goals. “Normalizing” drug use and drug users should lead to the “normalization” of the treatment system as well. Instead of developing a largely overdeveloped system, we should aim at changing it. Short term, informal interventions, like counselling, are needed to facilitate many of the naturally occurring changes in problem drug users. And a “normalized” treatment system is highly likely to be less expensive than the “disease” model treatment system.

This is the real “good budget cut” we should be talking about.

Grazia Zuffa

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